Pima County Superior Court Judge Richard Gordon has ruled in favor of voter privacy in a case involving ballot images produced by vote tabulation machines. The judge found that ballot images “will be treated exactly the same as physical ballots.”
The ruling was hailed by voter privacy proponents.
The case was brought by a Tucson man, Richard Hernandez at the behest of election activist John Brakey. Brakey, a perpetual critic of American elections, wanted to have access to the images despite the fact that access would deny voters their privacy rights.
In anticipation of Brakey’s legal maneuvers, the Arizona Legislature passed a law, SB1094, this year, which the judge cited, requiring that ballot images be treated the same as ballots.
SB1094 specifically states that “digital images of ballots are protected from physical and electronic access.” It requires that “all security measures are at least as protective as those prescribed for paper ballots.”
The ADI reported in March that “because the images are an exact replica of a voted ballot, the identity of the voter could be revealed due to the nature of the choices. The likelihood of a voter’s identity being revealed could be very high in small communities and races in which few votes would be cast; such as for precinct committeeman.”
Opponents to Hernandez’s lawsuit have argued that the right to an anonymous, private vote is a basic cornerstone of our democratic election process. Yet from the time we walk into the voting booth until long after we cast our ballot, our personal information is a highly sought-after commodity. Already the voter’s name, contact details, and political leanings are frighteningly easy for political campaigns to access, collect, share, trade, and sell. The only remaining secret is knowing how you actually voted and now that is at risk too with ballot images if they were to be made public.
Vote privacy rights advocates argue that the goal of transparency should be to achieve voter confidence in the election, something we all strive for; however, it cannot be done at the expense of threatening the integrity of an election. Election integrity must protect voters from outsiders who might try to punish those who vote “the wrong way” or reward those who vote “the right way”. To protect voters, the secrecy of the ballot should be assured.
The Court held a hearing on May 8, 2017. For the following reasons, the Court will grant the Motion for Judgment on Pleadings and make its previously entered preliminary injunction permanent.
On August 23, 2016, Plaintiff Richard Hernandez filed a verified Complaint seeking to preserve the computer-generated optical images of ballots which were going to be used in the tallying of election results in Pima County’s primary election (“ballot images”). The ballot image is a “picture” of the actual ballot cast by the voter. 1 On August 30, 2016, the Court held a hearing on Plaintiff’s request for a temporary restraining order at which Pima County agreed to preserve the ballot images until the matter was resolved.
On August 29, 2016, Pima County filed a Motion to Dismiss. Following briefing, the Court heard argument and denied the Motion to Dismiss. The Court found that the ballot images were “records,” see A.R.S. § 41-151.18, potentially subject to disclosure under public records law. The Court entered a preliminary injunction preventing the destruction of the ballot images.
On September 21, 2016, Plaintiff filed an Amended Complaint ostensibly covering ballot images in future elections, including the general election which was to occur in November 2016.
On October 25, 2017, Plaintiff (with two additional plaintiffs) filed a Second Amended Complaint. In the Second Amended Complaint, Plaintiffs seek review of Pima County’s ongoing refusal to produce the ballot images connected to the 2016 primary and general elections. On December 6, 2016, Pima County filed its Answer. Pima County’s Motion for Judgment on the Pleadings followed.
“‘A motion for judgment on the pleadings . . . tests the sufficiency of the complaint,’ and a defendant is entitled to judgment ‘if the complaint fails to state a claim for relief.”
Plaintiffs filed the present lawsuit to have the ballot images and the Cast Vote Record (“CVR”) for the 2016 primary and general elections preserved and ultimately disclosed to them under Arizona public records law. Pima County now agrees to a permanent injunction preserving the ballot images and Plaintiffs have been given the CVR. At issue, therefore, is only Pima County’s refusal to disclose the ballot images to Plaintiffs.
No facts are in dispute, and the parties agree that this Court’s decision is governed by Carlson v. Pima County, 141 Ariz. 487, 687 P.2d 1242 (1984). Under Carlson, records are presumed to be open to the public. But “[t]here are numerous statutory exemptions to the general ‘open access’ policy toward public records” that must be honored.
The availability of ballots and ballot images is explicitly addressed in Arizona law. The Arizona Constitution requires “secrecy in voting,” Ariz. Const. art. VII, § 1, and Arizona election law protects ballots from disclosure during the election process. Indeed, with a limited exception based on consent, it is a crime to disclose a voted ballot or solicit another to show his or her voted ballot.
Importantly, Arizona election law also protects ballots from disclosure after completion of the election process. Voted ballots are statutorily preserved only for conducting a recount and, afterwards, they must be destroyed without examination:
A. After the canvass has been completed, the officer in charge of elections shall deposit the package or envelope containing the ballots in a secure facility managed by the county treasurer, who shall keep it unopened and unaltered for twenty-four months for elections for a federal office or for six months for all other elections, at which time he shall destroy it without opening or examining the contents.
B. Irregular ballots shall be preserved for six months after the election and the packages containing them may be opened and the contents examined only upon an order of court. At the expiration of such time, the ballots may be disposed of in the discretion of the officer or board having charge of them.
C. The officer in charge of elections shall produce the other packages or envelopes before the board of supervisors when it is in session for the purpose of canvassing the returns.
D. If a recount is ordered or a contest begun within six months, the county treasurer may be ordered by the court to deliver to it the packages or envelopes containing the ballots, and thereupon they shall be in the custody and control of the court.
A.R.S. § 16-624. Under newly enacted law, moreover, ballot images are expressly treated with the same sanctity as paper ballots; “[t]he officer in charge of elections shall ensure that electronic data from and electronic or digital images of ballots are protected from physical and electronic access, including unauthorized copying or transfer, and that all security measures are at least as protective as those prescribed for paper ballots.” The Court construes this constitutional and statutory framework as exempting ballots, as well as ballot images, from public disclosure. While the wisdom of such laws might legitimately be questioned given the absence of transparency in the technology being used, that debate is for the legislature rather than this Court. This is not to say, however, that voting machines results are rotely accepted or the process is shielded from the public’s eye. In addition to mandatory hand count sampling, A.R.S. § 16-602, there are statutes that address the integrity of the voting machines themselves, including the inspection of voting machines before they are transported to election sites, A.R.S. § 16-447(B), required testing which is open to the public, A.R.S. § 16-449, and experts who are required to “field check and review electronic voting systems and recommend needed statutory and procedural changes,” A.R.S. § 16-452(D).
Having found that the ballot images are exempt from disclosure, there is no need to address whether, under Carlson, there are “countervailing interests of confidentiality, privacy or the best interests of the state” which would also justify Pima County’s decision.
The Court finds that ballot images are exempt from disclosure by Arizona election law. Plaintiffs’ Second Amended Complaint thus fails to state a claim insofar as Plaintiffs seek an order requiring the disclosure of ballot images.
1Although Plaintiffs’ counsel stated he was unable to verify this given his lack of access to the ballot images, he acknowledged this to be true and the Deputy Pima County Attorney agreed.